[Reasonably raised claims of IU]

45 minutes ago, Berta said:

I dont understand- do you mean you worked at the VA but are attempting to get a TDIU prior to the last day you worked at VA?

Yes and yes. Because of inability to maintain a job I think. I had worked part-time in food service at the VAMC, then briefly full time but ended up in emergency room for back strain, then HR gave me a medical transfer into an office job after about 3 or months. I was in that office job for about 6 months and had work disruptions all along due to SC conditions. Then I submitted a medical resignation. My primary care doctor and my psychiatrist are both at the same VAMC that I worked at.

Is it possible for an earlier effective date? I didn't go into full detail with Broncovet.

[Reasonably raised claims of IU]

41 minutes ago, Berta said:

"Yes, I think I am realizing the caveats. And yes, "reasonably raised" would have my effective date much earlier than the last day I worked at the VAMC because all along it was proof of inability to maintain employment (maybe), with my doctor involved all along signing off."

This was in response to Broncovet, when he said that the earliest effective date should be when I first told my doctor I was unable to work (provided I had a vets claim in progress (I think). My doctor became aware when she had to approve my medical transfer to a sedentary position, and she later had to approve unpaid leave due to medical, and also FMLA.

[Reasonably raised claims of IU]

11 hours ago, Berta said:

Rivet, can you scan and attach here the SOC to include the Evidence list?

Cover your C file # Name, Address prior to scanning it.

 

 

[Reasonably raised claims of IU]

2 minutes ago, Berta said:

Rivet, can you scan and attach here the SOC to include the Evidence list?

Cover your C file # Name, Address prior to scanning it.

Yes. I can do that momentarily. I already have it scanned...I need to remove ID info... hold on...

[Reasonably raised claims of IU]

1 hour ago, broncovet said:

You see, if you go to the VA and tell the doc you cant work, well, it only establishes a claim "IF" you have already applied for benefits.

You have helped me with sorting my records. Much thanks.

[Reasonably raised claims of IU]

29 minutes ago, Berta said:

This 2021 BVA decision might answer your questions:

https://www.va.gov/vetapp21/Files10/21063926.txt

In part:

"The assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Prior to March 24, 2015, a claim was a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits)"

https://www.va.gov/vetapp21/Files10/21063926.txt

This is an unusual case-I hope many here read it.

Here is another:

"FINDINGS OF FACT 1. A TDIU claim was reasonably raised by the record as of July 28, 2012, as part and parcel of the initial claim for adjustment disorder with anxiety and PTSD for which the Veteran has continuously pursued a higher rating. This service-connected disability precluded him from securing and following a substantially gainful occupation from July 28, 2012 onwards. 2. The Veteran was not service-connected for any disability prior to July 28, 2012."

"In view of the foregoing, the Board finds that July 28, 2012 is the proper effective date for the award of the Veteran's TDIU.  The probative medical evidence of record demonstrates that the Veteran has been prevented from maintaining substantially gainful employment due to his service-connected psychiatric disability since his separation from service. Because an implicit claim for a TDIU was raised as part of the increased rating claim for service-connected connected adjustment disorder with anxiety and PTSD with an appeal period beginning on July 28, 2012, this earlier effective date is granted. However, under the applicable laws and regulations, there is no basis for finding an even earlier effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400."

https://www.va.gov/vetapp21/Files6/A21011187.txt

I could cry, you've helped so much. God bless you as I go forward.

[Reasonably raised claims of IU]

2 minutes ago, pwrslm said:

This is a directive, not an option, so it is reasonable to assume this is compulsory under the duty to assist. Any Vet who is awarded a qualifying rating should automatically be considered for UI. (I was.)

God bless you. I definitely feel that VA dropped the ball on the "duty to assist part."  So, then the TDIU matter should be in our NOD, as Broncovet said, "court ruled that TDIU is an increase" and not some separate claim on its own.

[Reasonably raised claims of IU]

15 minutes ago, Berta said:

It is my undertadig that traditionally, if a vet was awarded 70% or more, and the VA knew they were unemployed, the VA would send them the TDIU form. But things have changed so much under the AMA- I need to see if I can find that regulation.... and if it still applies.

I am still in the Legacy system. Everything is legacy, including our appeal before the board. I had a hearing at the board, but then I was informed my hearing was improperly docketed as AMA. So, the hearing is meaningless. I'm back to responding to the SOC, that follows our NOD.

18 minutes ago, Berta said:

Regardless of a VA decision- if a veteran gets SSDI solely for an established VA SC disability, the VA must know of and then confirm the SSDI award and then consider the veteran is TDIU or 100% schedular for the SC disability.

Yes, I was granted SSDI solely for the SC conditions that has me rated 80% combined. I received the 80% vets decision I believe in April of 2018. Was granted my SSDI, effective date December 2018. We filed the vets NOD April 2019.

23 minutes ago, Berta said:

Also if the veteran has been deemed by VA VocRehab as unfeasible for this program, solely due to their SCs, In documentation from Voc Rehab, that means the veteran should be awarded 100% SC for the SC condition. If one cannot be rehabilitated, they are unemployable.

This part doesn't apply to me. Following my SS attorney's advice, of establishing documentation showing inability to work, I used my state's Voc Rehab to gain a Schedule A letter to increase my employment prospects at the VAMC, since I didn't have any veteran's preference points.

It may sound odd, but I had very few medical records when I first approached Voc Rehab and very few when I applied for SSDI. It took years after patient enrollment for healthcare was approved at the VAMC (category 7, income based, documented homelessness, social workers involved, etc) to have enough records for my attorney. So for SSDI purposes... I had to try to work again to build up work and medical documentation showing I couldn't work, so that my SS attorney had documents for my SS hearing. Long journey.

I did approach VA Voc Rehab early on, but the intake worker looked at my file and shook her head and cautioned me that if I had a claim in for SSDI (which I had told her I did) that my SSDI claim might be complicated by vocational retraining, but that also she thought I might not be approved for VA's Voc Rehab anyway given my conditions. I don't think I have any record of my attempt at VA Voc Rehab, other than a follow up letter saying it was denied for failure to make an appointment.

[Reasonably raised claims of IU]

I am in the legacy system.

20 minutes ago, broncovet said:

The court has ruled "a claim for tdiu" is a claim for increase.  That is important, because under the old "informal claims for increase" rules, your mention of being unable to work to a (VA doc) can be a claim for increase (tdiu) for effective date purposes.  

Ok

28 minutes ago, broncovet said:

You see, if you go to the VA and tell the doc you cant work, well, it only establishes a claim "IF" you have already applied for benefits. 

I believe this part applies to me. I had a claim in while I was trying to work part-time in food service (at the VAMC actually, under Schedule A hiring authority), then tried to do full-time in food service because my car engine went down (that lasted about 1.5 months then to emergency room at the VAMC), then medical transfer to a VAMC sedentary position, then lots of Dr appoints, then exhausted my sick leave, exhausted my PTO, exhausted unpaid leave limits, exhausted FMLA, and then finally submitted a medical resignation and long story short built up a lot of documentation that my own primary care doctor at the same VAMC had to sign off for. In other words, my primary care doctor was involved all along. But... I encountered problems in the form of 'information silos'. What occurred in employee records is not necessarily included in my patient records, so I'll have to check and see what extent information spilled over into my VA patient record.

41 minutes ago, broncovet said:

Yes, we have discussed reasonably raised claims for tdiu, those mostly apply to effective dates.  You need to be awarded tdiu FIRST to appeal your effective date of tdiu.  

While I dislike this immensely, you have to wait for the tdiu award before appealing the effective date.  This said, its certainly ok to address this issue in your claims/appeal for tdiu.  For example:

I would like to appeal the denial of tdiu.  This issue was first "reasonably raised" on a 1-15-2004 medical exam with Dr.  Jones, and was noted in his exam notes.  

Yes, I think I am realizing the caveats. And yes, "reasonably raised" would have my effective date much earlier than the last day I worked at the VAMC because all along it was proof of inability to maintain employment (maybe), with my doctor involved all along signing off.

[Reasonably raised claims of IU]

3 minutes ago, pwrslm said:

The M21 Adjudication Procedures Manual states that the RO should be considering all "unclaimed subordinate issues and ancillary benefits". I would that that to mean that the issue of IU should be reviewed automatically. In every claim I have made the RO made the statement that I was not getting IU as if it were a built in step in rating decisions.

 

V.ii.3.A.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision

When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are

expressly claimed

within scope of an expressly claimed issue, such as

complications of the claimed condition, or

unclaimed subordinate issues and ancillary benefits, or

compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as

reductions of service-connected (SC) disability evaluation

clear and unmistakable errors (CUEs)

entitlement under the Nehmer stipulation, or

competency reviews.

(That section refers to this section. The table in this section, toward the end, directs:)

V.ii.3.A.2.b.  When to Address Subordinate Issues and Ancillary Benefits

"the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and

there is evidence in the Veteran’s claims folder or under VA control that indicates he/she may be unemployable due to SC disability"

(So it should be part of the process, and also refers to this section)

 

 

M21-1, Part VIII, Subpart iv, Chapter 3, Section B - Individual Unemployability (IU) Claims Development

(Which is the step by step guide for IU development)

So if the RO failed to do this, and notice was not in your claim decision before this, then it was a mistake on the part of the RO.

These are the way problems are created that result if the denial of benefits. Regardless of the outcome of the entitlement to these benefits when any Vet is denied this step, it technically violates our due process rights.

Thank you so much!

[Reasonably raised claims of IU]

First let me say I am in the Legacy system and now dealing with the SOC in response to my NOD.

On the decision letter of my initial claim, granted 80% combined, it stated that my SC conditions "...interferes with work." It's acknowledged in the decision letter that granted me 80% combined.

Today I get an SOC (from the NOD we filed for increases and TDIU consideration) denying all issues, simply because the evidence and records they have stop at 2018, and simply no mention at all of TDIU.

So I call 1-800-Peggy and ask her what about the TDIU? The SOC shows all issues denied (for increases and additional service connects) but no mention of TDIU whatsoever. 

Peggy told me that raising the issue of TDIU should not have occurred on an NOD, that it should have been submitted as a new claim, and therefore I would want to file an Intent to File Claim for TDIU, meaning that my effective date would be the date of Intent to File (January 8, 2022) and not the last day of employment as the judge had noted in my BVA hearing.  Well I received a letter from the Board saying my hearing was improperly docketed as AMA, so the hearing I had in August 2021 is meaningless. I'm back to whether the issue of TDIU was reasonably raised on the NOD.

I searched the Hadit forum and I happened upon a post by Berta, dated March 5, 2021. that she had titled Identifying Reasonably Raised Claims of IU.

This causes me to wonder if my IU is a reasonably raised claim, when firstly the VARO had already recognized my SC conditions (at 80% combined) as "interferes with work" on my decision letter and secondly we state on my NOD that the VARO "...didn't consider TDIU" when it should have. Is Peggy right that I should have filed a separate claim for TDIU, or is my attorney right in following rules of Reasonably Raised Claims of IU when he used the NOD to do so?

Thanks in advance for all responses on whether or not I have a reasonably raised claim of IU as it stands now.

 

[Upgrade 100% rating to P&T]

2 hours ago, broncovet said:

Let me give a couple examples of "lay opinions" or medical evidence:

This is brilliantly broken down to guide me going forward. Thank you!  Yeah I kind of felt it's not my place to play doctor or attorney, but your explanations of usable lay evidence vs unusable lay opinions really clears up the differences.

BTW I just got my 'big white envelope,' and it's either the long awaited SOC or long awaited BVA hearing decision. Almost too afraid to open it.  

[Appeal or Supplemental Claim]

2 hours ago, pacmanx1 said:

Bronco, can you separate these posts from the OP (Original Post). Smirak and Rivet62 should be two separate threads. 

Oh. Sorry about that...I didn't realize I had strayed from the OP post. 

[VA Compensation Rates]

On 1/5/2022 at 6:05 AM, pwrslm said:

Purchasing power is eroding. That means that the buying power of $1 in 1980 is equal to 27 cents today.

For that to balance out the pay rates would need to be almost 4 times what it was in 1980. The actual COLA increase amounts to about $3.20 so the decrease of about 72 cents per dollar equivalence is our loss of purchasing power. That is an erosion of 22 cents on the dollar.

The cost of rent and housing has risen faster than COLA as well, and in some area's (Cali, DC, NYC, etc) the increases are staggering. A 100% Vet living in some of those area's could barely survive.

And in other parts of the country that are attractive. I was in one of those. Housing costs went insane about 3 years before the rest of the nation felt it. Felt like quicksand and I was on my knees with it. As for erosion of spending power, I read a thread on the city data forum where a guy who worked fast food back in the 80s afforded mortgage payments and new car payments and insurance and had kids. Insane to think that's possible now. Even myself, back in the early 90s, I could afford a nice apartment and new car payments and nice clothes on $9 something an hour.

The only thing I can do now is pay off my house as fast as I can and start growing vegetables maybe (SC conditions prevent a lot). I bought a house at a price exactly half what I qualified for, to try to beat the higher prices I knew were coming. People on fixed income don't have a lot of wiggle room.

 

[VA Compensation Rates]

On 1/3/2022 at 4:09 PM, john999 said:

How about everyone writing their congressmen and pointing out how low our compensation rates are especially for younger vets who become 100% and have no significant SSA or pension benefits from a long term job. 

SSA's Supplemental Security Income (SSI) is supposed to give at least a minimum income when there are not enough earnings on the SS record, but it falls way way short. Look up what SSA pays for SSI. It's no fun. I could be mistaken, but even an 80% rate of monthly pay would disqualify someone for SSI (since SSI is needs based).

I'm not a younger vet, but I had poor earnings for a long time due to SC conditions. Fortunately, my SS earnings record had me just over SSI's payment and so my monthly SSA payment is for SSDI and because of that I received my SS backpay when SSDI was granted. SSI recipients don't receive backpay. My SSDI payment is not much over the SSI maximum.

Society's answer to income below the federal poverty line is public housing (with long wait lists--3 years in my former area -- not fun), and the answer to transportation is the public bus system. As it is now, and as it has been forever, SSA's SSI amount alone would lower food stamps to less than a hundred a month (different states do different things).  

I had to move to a more affordable area of the country to use my VA home loan on a home of my own, on just my SSDI and my 80% vets rate. I'm single so there is nothing else, and yet I feel very fortunate I made that move WHEN I did (right before prices shot up everywhere). 

[New C@P exam for Cervical Spine]

I was in a very heavy AFSC(MOS), 40 years ago, that had me in very awkward positions which caused back injury. The medical opinion I was able to get pointed to National Institute of Health (NIH) guidelines for the weight I carried relative to my body weight and height.  It showed that I was physically out of range for the AFSC (MOS). The opinion I got, from a medical doctor, simply said that "damage to the spine cannot be discounted."  Perhaps you can draw from readily accepted standards somehow, like I had from the NIH?

[Appeal or Supplemental Claim]

My situation is similar to Broncovet's, somewhat, but my situation unfolded more slowly perhaps.

Following my SSDI attorney's advice, she suggested trying to work again to establish the records she needed to prove unemployability. It was slow but sure fire. First, she suggested I seek the services of my state's Vocational Rehabilitation office (to show SSA I have tried. SSA wants to see that you've tried everything).  So I asked my state's Vocational Rehabilitation office for a statement of Schedule A federal employment eligibility, and I used that to increase the likelihood of employment at my local VAMC, since I didn't have veterans preference points for employment.

I got employed at the VAMC and simply let nature take its course. My employment ability at the VAMC unraveled quickly in real time, first with a medical transfer, then exhausting PTO, unpaid leave, and FMLA, in addition to frequent doctors appointments.  I ended things by submitting a medical resignation, with the support of my VA primary care doctor and  VA psychiatrist.

Meanwhile VA granted me 80% combined service connect, then about 10 months later my SSDI was granted based on all conditions that were SC'd in my vets claim.

My VA disability attorney filed an NOD (legacy system). I had the BVA hearing in August 2021 and the decision letter has been sent December 23rd. Still waiting to receive it. My attorney is 100% sure I'll get TDIU and 50% sure I'll get P&T.  

Last time I worked was July 2018, but my employment problems from all things SC'd has been ongoing for decades, literally, and my SS work record shows under-employment and gaps.

The point that I'm making here is that the advice my SSA attorney gave me, to build irrefutable documentation of unemployability, seems to have served me well in my pursuit for TDIU. I won't know until I finally get the SOC and/or BVA decision letter.  Prior to following my SSA attorney's advice I had very little documentation to show in the way of employment problems or SC conditions causing employment problems. As it turned out, my VA primary care doctor had to sign her opinion to the VA employment medical transfer, the unpaid leave, and finally the FMLA. In the end I don't think I needed her medical opinion supporting TDIU, because I had gotten her opinions all along in the problems of my employment at the VAMC. We'll see.

 

 

[Upgrade 100% rating to P&T]

Has anyone seen this? It's for upgrading to P&T.

How to Write a Powerful VA Permanent Disability Letter (4-Step Process), published January 4, 2022

https://vaclaimsinsider.com/va-permanent-disability-letter/

What are your thoughts on this?  I'm working with an attorney for increases and/or TDIU P&T and so I would probably move letters like this through him in the form of a personal statement perhaps, but what are your thoughts on these sample letters?

[How often should I get my issues treated? Fear of rate reduction one day.]

MyHealth eVet messaging helps me stay in touch with providers for concerns I have in between visits. Not everything is an emergency but when I feel things have worsened I tell them and if they want appointments or tests then I go. My VA primary care doctor (VA outpatient clinic) has suggested I go to urgent care locally for increased difficulties or the emergency room of my local hospital if my pain is acute. I think it's important to do what they suggest. It's the medical protocol they're following and I'm assuming it's the continuity or disability progression that VA reviews on claims.

[A sudden Change to the BVA web site]

Am I mistaken or does this exist at VA.gov now? I happened upon a page of cases that is searchable by date or docket number.

Rivet62

P.S  Thanks for having me as a new member.

There's this:  https://search.usa.gov/search/docs?affiliate=bvadecisions&dc=9161&query=

I'll try to find the Va.gov one because it seemed easier to use.